Copyright in artistic works Flashcards
What order (7 things) should you address the problem?
- Is it original
- Does it fall within s1(1)(a) as defined by S4
- Is it permanent and is the author qualified
- Is the author the owner
- Is it within the protection period
- Infringement
- Defences
3 cases on originality
Ladbroke v William Hill - originality goes to source not inventiveness
University of London Press: For originality there need only be minimal skill, labour and judgment
Interlego: revision / update of a work must be more than minimal to start the clock again
What section of the CDPA explains “artistic work”
s4
3 cases explaining graphic work
British Northrop: Anything beyond a single line
Wham-O: Engravings on a frisbee
Hi Tech Autoparts: etchings on a carmat
When is a photo of an object a copyright work
When the lighting, angle, positioning etc are skillful: Antiquesportfolio.com, Red Bus Case
What is a collage?
Two or more things stuck together with adhesive: Creation Records
What is a sculpture (2 cases)
a 3D work made by the artists hand: metix
Must be intended to be enjoyed for aesthetic purposes alone: Lucasfilm
Minimum threshold for architecture
Any fixed structure
Can be dull: Hay v Sloan (suburban housing)
What is a work of artistic craftsmanship
- Eye appeal and 2. craftsmanship (can be a team): Vermaat v Boncrest
How is eye appeal judged (2 cases)
Intention of the maker: Hensher v Restawile
Not if it is functional: Merlet v Mothercare
How is craftsmanship judged (2 cases)
Skill and pride in work - Vermaat v Boncrest
Not made by machine - Guild v Eskander
Obiter comment in Metix about sculpture
An ice sculpture would be protected by copyright
What order do you address qualification copyright protection
s153 (1) AUTHOR is domiciled / resident / citizen of a CONVENTION country (Art 2(6) Berne Convention at material time
OR
first PUBLISHED in the UK
What is the material time?
s154(4)
UNpublished: time of creation
PUBLISHED: time of publication
What is publication
Issue of copies, availability online, NOT exhibition
Which section deal with ownership and what does it say?
S11 - Author is the owner
UNLESS
made in course of employment (eg Beloff v Pressdram)
What section deals with joint ownership and what does it say
S10 - Contributions must not be distinct. BUT see Beckingham v Hodgens - young at heart riff
What is the protection period for copyright (and the sections)
S12(2) Life + 70
S52(2) Reduced to 25 years if exploited commercially
Where are the infringing acts listed
S16
What is the test for infringement of copyright
Substantial taking. Designers Guild Test:
1. Identify the features of the Ds design which are alleged to be copied
2. If there is similarity plus opportunity for copying the burden is on D to show no copying
3. Is the copied element a substantial element of the source work (not Ds).
Test is impressionistic, goes to quality not quantity when considering importance to source work.
Two things to remember about the Designers Guild test
Do not break the copied work into its constituent parts: ladbroke v William Hill
Red Bus: look to overall composition, distinctive elements
Where does it say that copying can be direct or indirect?
s16(3)(b)
An example of indirect copying
CD cover based on poster based on photo: Gabrin v Universal
An example of subconscious copying
ABCKO v Harrisongs
Is there a parody exception
No: Schweppes v Wellington
What section says that a 3D copy of a 2D work infringes and vice versa
17(3)
What case says there is no clearcut rule for the dividing line between copying of an idea or an expression
Baigent & Lee
Where is the provision on authorising infringing ats and what is the definition
S16(2). Authorise = sanction, countenance or approve: Moorhouse
Which sections apply to commercial dealings with infringing copies
S22&23 - and see Pensher - infringing doors in a block of flats = secondary infringement.
What is the main defence to infringement of a design
s51 - making something to the spec of a design document, BUT doesn’t count for works of art.
When was what was copied a mere idea
Norowzian
When was a design not permanent
Hensher
Independent creation was a defence
Kleeneze
What section says that copyright prevails over a design right where both exist
s236
